Questions about your refusal to take a DUI blood, urine, or breathalyzer test at your DUI trial

Last Modified: August 14, 2023

Questions about your refusal to take a DUI blood, urine, or breathalyzer test at your DUI trial

If you and your DUI attorney decide that you should testify at your DUI trial, and you refused to submit to a breathalyzer or blood or urine test, your DUI attorney will question you about your refusal. DUI defendants refuse testing for a variety of reasons including confusion, a mistaken belief in a right to an attorney, or that the officer has no right to request the test.

Below are some questions that a DUI lawyer might pose to a client about his or her refusal to submit to a breathalyzer or other chemical testing along with answers that a well-prepared DUI defendant might give.

Refusal to take a DUI breath test due to confusion

DUI ATTORNEY: John, you heard the officer indicate you refused to take any chemical test?


DUI ATTORNEY: Was there any particular reason why you refused?

DEFENDANT: I was confused.

DUI ATTORNEY: How were you confused?

DEFENDANT: The officer told me at the scene that I did not have to take the breath test, and then he told me I did have to take one.

DUI ATTORNEY: Hold on. When did the officer tell you that you did not have to take a breath test?

DEFENDANT: When he arrested me.

DUI ATTORNEY: Before or after the arrest?

DEFENDANT: When he arrested me.

DUI ATTORNEY: Okay, let’s take this one step at a time because it is confusing me. The officer testified that he had you perform FSTs and asked for a roadside breath test, do you remember that?


DUI ATTORNEY: Then he arrested you and read the admonition about a chemical test.

DEFENDANT: I don’t know.

DUI ATTORNEY: What do you mean?

DEFENDANT: After he told me I needed to take a breath test, he told me it was voluntary, so I said no. Then he arrested me and told me I had to take a test, and I said no, just like I had said. I did not realize they were different tests.

DUI ATTORNEY: So, let me see if I can understand you. You did the FSTs?


DUI ATTORNEY: Then the officer read or told you the PAS admonition?


DUI ATTORNEY: Which is voluntary?


DUI ATTORNEY: Which you declined as is your right?


DUI ATTORNEY: Then, the officer told you that you had to give a test?


DUI ATTORNEY: And that confused you since he had just said you had the right to refuse the test?


DUI ATTORNEY: About how much time went by between the time of the PAS request and the second request?

DEFENDANT: Less than 30 seconds. It was “I would like you to take this test, but you do not have to” followed by you are under arrest, then “you are required to give me the test.”

DUI ATTORNEY: So it was one right after the other?


Refusal to take a DUI chemical test due to belief in a right to an attorney

DUI ATTORNEY: Is there any reason you refused to give a chemical test?


DUI ATTORNEY: What is that?

DEFENDANT: I thought we all had a constitutional right to an attorney before we gave evidence.

DUI ATTORNEY: Did the officer tell you that you did?

DEFENDANT: No, he said I did not.

DUI ATTORNEY: So why didn’t you believe the officer and give him a sample?

DEFENDANT: I did not believe him. I have always been told we can have a lawyer with us. I thought he was trying to trick me.

DUI ATTORNEY: Why would you think the officer would mislead you?

DEFENDANT: Well that is what they do on TV and in the movies, and he had already told me I failed the FSTs when I thought I had passed them. I just did not think the officer was on my side.

DUI ATTORNEY: Anything else?

DEFENDANT: Yes. I always was taught that it was a lawyer who would tell you and the officer what was correct or not. I have never been in this position so I felt it was my right to ask someone else what to do. That someone else would be a lawyer.

DUI ATTORNEY: So it was because of what you have read, seen or been taught that made you believe that a citizen had the right to an attorney?


DUI ATTORNEY: It was not to try and hide evidence?

DEFENDANT: No, just the opposite.

DUI ATTORNEY: What do you mean by that?

DEFENDANT: If I had given the test, it would have shown I was not over .08 so I would not be here. If I could do it again, I would take the test to show my innocence.

Refusal to take a DUI chemical test due to belief officer had no right to demand the test

DUI ATTORNEY: You admit that you refused the chemical test?

DEFENDANT: That’s right.

DUI ATTORNEY: Any particular reason why?

DEFENDANT: Yes. This is America. The government is not allowed to force us to give evidence against ourselves.

DUI ATTORNEY: So are you saying that the chemical test would be evidence against you?

DEFENDANT: No. I am saying that the government has no right to force me to do anything.

DUI ATTORNEY: But the request would show you were innocent?

DEFENDANT: It doesn’t matter. The government has no right to come into my house or into my body.

DUI ATTORNEY: So even though the test would have helped you out of this predicament, you refused?

DEFENDANT: Wrong is wrong. It is the obligation of the government to prove my guilt. I do not have to prove my innocence and I do not have to give the government the evidence to do so. That’s what this country is based on, or so I thought.

Regardless of the specifics of your situation, assistance from an experienced DUI attorney with your testimony is crucial. A qualified DUI defense attorney will know the right questions to ask and will prepare you to testify honestly but effectively about why you refused to take a breathalyzer or blood test.

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